Does The First Amendment Protect Up-Skirt Photographers?

Do you have a reasonable expectation of privacy when you ride public transit? A Massachusetts court is currently weighing that issue in a case involving up-skirt photos. The lawyer for a man who stands accused of using his cell phone to photograph women on the Boston Green Line subway argues that her client's actions did not violate anyone's privacy. “If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy,” attorney Michelle Menken told the Supreme Judicial Court. Her client, Michael Robertson, was arrested in 2010 and charged with two counts of photographing an unsuspecting nude or partially nude person.

The "peeping Tom" laws currently on the Massachusetts books, however, only protect people who are nude or partially nude, such as in dressing rooms and bathrooms. Menken also claimed that there was nothing secretive about her client's actions — he photographed them while standing — and that since the women in his photographs were wearing underwear, he was not in violation of current laws. Further, she argued that this could be a First Amendment issue, suggesting that a journalist who accidentally snapped a photo of a breastfeeding woman's nipple could be put in her client's position.

But Cailin Campbell, a lawyer arguing on behalf of the state, said that “there is an understandable expectation that one can have on not being photographed like that in that kind of setting.”

Is there really such an expectation in an age when people routinely photograph others in order to post them on the Internet for amusement? Almost anyone with a cellphone is a citizen photographer. We are surveilled by authorities just as much as we surveil our fellow citizens. We are constantly in someone's lens.

That's not to say that surreptitious photography isn't wrong, or that a case can't be made — as one of the justices in the case does — that, well, we're all partially nude from time to time. What's the difference, the judge wondered, between a camera lens and what the eye can see?

Another justice asked the state's attorney, "What if a photographer is doing a project of people on the subway or out in public and he wants to get candids. Can he now not do that?"

"Just because somebody wants to take a picture, doesn’t mean they should," she said. (Bullett)

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